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THIRD
SECTION
CASE OF KARATEPE AND ULAŞ v. TURKEY
(Application
no. 29766/03)
JUDGMENT
STRASBOURG
17 June
2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Karatepe and Ulaş v. Turkey,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep
Casadevall,
President,
Elisabet
Fura-Sandström,
Boštjan
M. Zupančič,
Ineta
Ziemele,
Luis
López Guerra,
Işıl
Karakaş,
Ann
Power, judges,
and
Santiago Quesada,
Section Registrar,
Having
deliberated in private on 27 May 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 29766/03) against the Republic
of Turkey lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by two Turkish nationals, Mr Umar Karatepe and
Ms Sevil Ulaş (“the applicants”), on 22 August
2003.
- The
applicants were represented by Mr A.T. Ocak, a lawyer practising in
Istanbul. The Turkish Government (“the Government”) were
represented by their Agent.
- The
applicants alleged that the treatment to which they had been
subjected by police offices during their arrest had amounted to a
breach of Article 3 of the Convention.
- On
8 December 2006 the Court decided to give notice of the application
to the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1975 and 1978 respectively and live in
Istanbul.
- On
1 September 2001 at about 7 p.m. the applicants went to the Milli
Egemenlik Park in Bakırköy (Istanbul) to attend a meeting,
namely the so-called “peace festivities” organised by the
Bakırköy branch of the Republican People's Party
(Cumhuriyet Halk Partisi). While they were about to enter the
park, the applicants were stopped and searched by the police. The
officers found fifty-three copies of a bulletin in a black plastic
bag. As the applicants appeared suspicious, the police officers
arrested them. The applicants were allegedly beaten up, insulted and
threatened with death during their arrest. In particular, two police
officers applied pressure to their necks from behind and made them
lie down. Following the arrival of two more police officers, they
dragged both applicants along the ground, kicked and slapped them and
put them in a police car. Once in the car, the police officers
continued to punch and slap them, hit them with wooden sticks, insult
and threaten them. One of the police officers first sat on the head
of Sevil Ulaş and then hit her against the roof of the car. When
the applicants asked where they were being taken, one of the officers
said: “We are taking you to a stream where your corpses will be
found”.
- However,
according to the arrest and seizure report drafted by two police
officers, the applicants were arrested because they had been acting
suspiciously. The report further stated that the applicants had
resisted the police officers, and had self-inflicted certain
scratches and bruises on their bodies during the incident. In
particular, Umar Karatepe had hit his elbow on the wall of the park
and Sevil Ulaş had bruised her left elbow whilst resisting
getting into the police car. The applicants refused to sign this
report.
- On
the same day at about 8 p.m. the applicants were taken to the
Bakırköy State Hospital for a medical examination. The
doctor who examined the applicants drafted a provisional report. She
observed that the first applicant had two scratches on his right
elbow and a bruise on his back. As for the second applicant, the
presence of a bruise on her left elbow was noted.
- On
2 September 2001, at about 1 a.m., the applicants were taken to the
Bakırköy State Hospital once again. The same doctor
examined the applicants and reiterated her earlier findings in her
report. Following this medical examination, the applicants were
released.
- On
3 September 2001 the Bakırköy Forensic Institute delivered
its final report in respect of the applicants. It was stated that the
first applicant had several bruises and scratches on his body. In
particular, the doctor noted the presence of bruises measuring 3x1
cm, 0.5x0.5 cm, 2x1 cm and 0.5x0.3 cm on the right elbow, a scratch
of 2 cm below the bruises described above, an ecchymosis of 6x3 cm on
the inner part of the right arm, an ecchymosis of 1x2 cm in the
middle inner part of the right biceps, a scratch of 3 cm on the right
waist area, two ecchymosis of 1,5x1 cm and 0,3x0,3 cm on the inner
middle part of the left biceps and a bruise of 2x2 cm on the inner
part of the left elbow.
- In
respect of the second applicant, the doctor noted the presence of a
3x3 cm swelling in the right occipital temporal region. The report
further concluded that both applicants were unfit to work for three
days.
- Again
on 3 September 2001 the applicants filed a criminal complaint with
the Bakırköy Public Prosecutor. They complained that the
police officers had used excessive force during their arrest. They
also stated that a person called Ö.U. had been an eyewitness to
the events. Sevil Ulaş complained that in the course of her
arrest she had received blows to her head and upper part of her body,
that her head had been banged against the window, that her hair had
been pulled and that these assaults by police officers had continued
in the police car. Umar Karatepe alleged that he had been kicked and
slapped during his arrest and that he had been beaten up in the
police car on the way to the police station.
- In
his preliminary investigation report dated 28 December 2001, a senior
police lieutenant, acting as the investigator, found that the
complainants had shouted political slogans, such as “human
dignity will defy torture” and that they hated the police
because they had been arrested and detained on a number of occasions
in the past and that the medical reports did not indicate the
presence of any bruises which could have been caused by
ill-treatment. Furthermore, considering that the police officers
denied the allegations against them, the investigator concluded that
there was no evidence on which to commit the accused for trial.
- On
28 December 2001, relying on the investigator's above report prepared
in accordance with Article 5 of Law no. 4483, the Bahçelievler
District Governor decided not to authorise the prosecution of the
accused police officers. The applicants filed an objection against
this decision.
- On
9 April 2002 the Istanbul Regional Administrative Court set aside the
District Governor's decision of non-authorisation on the ground that
the investigation into the applicants' allegations was inadequate.
The court noted that the investigator had failed to take evidence
from the complainants and their witnesses. It therefore asked the
District Governor's office to conduct a new investigation. The
District Governor appointed M.A., a police lieutenant, as the new
investigator.
- Between
30 May 2002 and 14 July 2002 M.A. conducted his investigation into
the applicants' allegations of ill-treatment. Having heard the
applicants, police officers and an eyewitness named by the
applicants, he found that the medical reports merely indicated the
presence of scratches on the arms and hands of the complainants and
that there was no indication of physical violence. He therefore
concluded that the applicants' allegations were not corroborated by
evidence and that therefore no permission should be given for
prosecution of the accused police officers.
- In
view of the investigator's above-mentioned conclusion, on 15 July
2002 the Bahçelievler District Governor refused authorisation
for the prosecution of the accused police officers.
- On
7 October 2002, referring to the Bahçelievler District
Governor's decision, the Bakırköy Public Prosecutor issued
a non prosecution decision in respect of the accused police
officers. The applicants appealed against this decision.
- On
17 December 2002 the Eyüp Assize Court dismissed the applicants'
appeal. This decision was notified to the applicants on 26 February
2003.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- A
description of the relevant domestic law at the material time can be
found in Batı and Others v. Turkey (nos. 33097/96
and 57834/00, §§ 96 100, 3 June 2004).
- Furthermore,
Law No. 2559 on the Duties and Powers of the Police provides:
Additional Article 6 (dated 16 June 1985)
“In cases of resistance by persons whose arrest is
necessary or by groups whose dispersal is necessary or of their
threatening to attack or carrying out an attack, the police may use
violence to subdue these actions.
Use of violence refers to the use of bodily force,
physical force and all types of weapons specified in the law and it
gradually increases according to the nature and level of resistance
and attack in such a way as to restore calm.
In cases of intervention by group forces, the extent of
the use of force and the equipment and instruments to be used are
determined by the commander of the intervening force.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicants complained that the force used during their arrest was
excessive and disproportionate and constituted ill-treatment in
violation of Article 3 of the Convention, which provides:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The
Government contested that argument.
A. Admissibility
- The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
- The applicants alleged that they had been severely
beaten up by the police officers in the course of their arrest. They
explained that they had been kicked, slapped, hit by wooden sticks
and constantly insulted and threatened with death by the police
officers. In their opinion, the medical reports clearly indicated the
effects of the ill-treatment which they had suffered.
- The
Government claimed that the force used by the police officers was
necessary to effect the applicants' arrest. Referring to the medical
reports which indicated the presence of bruises on the upper parts of
the applicants' bodies, they submitted that the bruises on the body
of Umar Karatepe could have occurred as a result of his
resistance to the police officers who wanted to put him into the
police car. Furthermore, the findings contained in the forensic
medical report did not prove Sevil Ulaş's allegation that she
had been assaulted by the police officers. The swelling on her head
could have been caused by her own resistance to the police officers.
- The
Court notes at the outset that Article 3 enshrines one of the most
fundamental values of democratic societies, making no provision for
exceptions and with no derogation from it being permissible, as
provided by Article 15 § 2 (see Selmouni v. France [GC],
no. 25803/94, § 95, ECHR 1999-V; Assenov and Others v.
Bulgaria, judgment of 28 October 1998, Reports of Judgments
and Decisions 1998-VIII, p. 3288, § 93).
- It
reiterates that Article 3 does not prohibit the use of force in
certain well-defined circumstances, such as to effect an arrest.
However, such force may be used only if indispensable and must not be
excessive (see, among other authorities, Rehbock v. Slovenia,
no. 29462/95, §§ 68 78, ECHR 2000 XII;
Krastanov v. Bulgaria, no. 50222/99, §§ 52 and
53, 30 September 2004; and Günaydın v. Turkey,
no. 27526/95, §§ 30 32, 13 October 2005).
- The
Court further reiterates that allegations of ill-treatment must be
supported by appropriate evidence. To assess this evidence, it has
generally applied the standard of proof “beyond reasonable
doubt” (see Talat Tepe v. Turkey, no. 31247/96, §
48, 21 December 2004). Such proof may, however, follow from the
coexistence of sufficiently strong, clear and concordant inferences
or of similar unrebutted presumptions of fact (see Labita v. Italy
[GC], no. 26772/95, § 121, ECHR 2000 IV). Furthermore,
where allegations are made under Articles 2 and 3 of the Convention,
the Court must apply a particularly thorough scrutiny (see, mutatis
mutandis, Ribitsch v. Austria, judgment of 4 December
1995, Series A no. 336, p. 24, § 32).
- In
the instant case, the applicants claimed to have been severely beaten
up, insulted and threatened with death by the police officers (see
paragraph 6 above). In the Court's opinion, the presence of
widespread bruises and scratches on the bodies of the applicants, as
indicated in the medical reports issued by the Bakırköy
State Hospital and Bakırköy Forensic Institute, are at
least consistent with the applicants' allegations of having been
subjected to physical violence (see paragraphs 8-11 above). It
considers therefore that the injuries sustained by the applicants are
sufficiently serious to bring them within the scope of Article 3 (see
Ireland v. the United Kingdom,
judgment of 18 January 1978, Series A no. 25, p. 65, §
162). In these circumstances, the Court considers that the
burden rests on the Government to demonstrate with convincing
arguments that the use of force, which resulted in the applicants'
injuries, was not excessive (see, Eser Ceylan v. Turkey,
no. 14166/02, § 30, 13 December 2007).
- But
the Government did no more than claim that the applicants had
sustained injuries as a result of having resisted arrest by the
police and that, in other words, they had inflicted injuries on
themselves. Moreover, in concluding that the applicants' allegations
of ill-treatment were not corroborated by any evidence, the two
investigators appointed by the Bakırköy District Governor
attached significant weight to the fact that the applicants had
shouted political slogans, that they already hated the police and
that the injuries were mere scratches which could not have resulted
from physical violence (see paragraphs 13 and 16 above).
- The
Court finds these explanations irrelevant and unconvincing. It
considers that, even if the applicants resisted arrest by the police,
this could only have provided a very incomplete, and therefore
insufficient, explanation of the widespread injuries on the body of
the first applicant and on the head of the second applicant, which
rendered them unfit for work for three days. In this connection, it
notes that the applicants were arrested while entering a park where
peace festivities were to take place. The police officers wanted to
arrest them because they looked suspicious (see paragraph 6 above).
However, the Government did not suggest that the festivities in
question were the scene of violence or likely to give rise to
unexpected developments to which the police officers had to react
without prior preparation (see Eser Ceylan, cited
above, § 30). In these circumstances, the Court considers that
the Government have failed to furnish convincing or credible
arguments which would provide a basis to explain or to justify the
degree of force used against the applicants, whose injuries are
corroborated by medical reports.
- The
foregoing considerations are sufficient to enable the Court to
conclude that the force used against the applicants during their
arrest was excessive and that therefore the State is responsible,
under Article 3 of the Convention, for the injuries sustained by them
during their arrest.
- There
has accordingly been a violation of Article 3 of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The applicants further complained of violations of
Article 5 § 1 (c), Article 10 and Article 11 of the Convention.
In this connection, they alleged that they had not been informed of
the reasons for their arrest and that their rights to freedom of
expression and association had been breached since they had been
prevented from participating in the festivities.
- The
Government contested these arguments.
- An
examination by the Court of the material submitted to it does not
disclose any appearance of a violation of these provisions. It
follows that this part of the application is manifestly ill-founded
and must be declared inadmissible pursuant to Article 35 §§
3 and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicants each claimed 5,000 euros (EUR) in respect of pecuniary
damage. This sum related to their loss of earnings and medical costs
and expenses. They also claimed a total sum of EUR 10,000 in respect
of non pecuniary damage.
- The
Government did not reply to the applicants' just satisfaction claims.
- As
regards the alleged pecuniary damage sustained by the applicants, the
Court considers that they have failed properly to substantiate their
claim under this head. The Court accordingly dismisses it.
- However,
the Court finds that the applicants must have suffered pain and
distress which cannot be compensated for solely by the Court's
finding of a violation. Having regard to the nature of the violation
found in the present case and ruling on an equitable basis, it awards
the applicants each EUR 5,000 in respect of non pecuniary
damage (see Eser Ceylan, cited above, § 37).
B. Costs and expenses
- The
applicants also claimed EUR 9,633.94 for the costs and expenses
incurred before the Court.
- The
Government did not comment on the applicants' claims.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum. In the present case, the Court notes that the applicants
solely referred to the Istanbul Bar Association's scale of fees and
failed to submit any documents in support of their claims. The Court
therefore does not award any sum under this head (see Balçık
and Others v. Turkey, no. 25/02, § 65, 29 November
2007).
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the alleged
ill-treatment inflicted on the applicants admissible and the
remainder of the application inadmissible;
- Holds that there has been a violation of Article
3 of the Convention;
- Holds
(a) that
the respondent State is to pay each of the applicants, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
EUR 5,000 (five thousand euros), plus any tax that may be
chargeable, in respect of non pecuniary damage, to be converted
into Turkish liras at the rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 17 June 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall
Registrar President
